Case Note & Summary
The petitioner, Sarjerao Krishnarao Kadam, was the decree-holder in a civil suit. The respondents, Uday Ramrao Thorat and others, were the judgment-debtors. The respondents had filed Second Appeal No. 316 of 2014 before the Bombay High Court challenging the decree. On 12 January 2018, the High Court specifically declined to grant any interim relief to the respondents in the second appeal. Despite this, the respondents applied to the Executing Court for a stay of execution. The Executing Court, by order dated 6 December 2017, allowed the application and stayed the execution until the hearing of the second appeal, subject to the condition that the judgment-debtors deposit Rs. 25,000 as security. The Executing Court purported to rely on Order XXI Rule 26 and Order XXI Rule 29 of the Code of Civil Procedure, 1908. The petitioner challenged this order before the High Court. The High Court held that the impugned order was ex-facie unsustainable. Once the appellate court had declined interim relief, the Executing Court could not indirectly grant the same relief. Order XXI Rule 26 only contemplates granting reasonable time to the judgment-debtor to seek a stay from the appellate court, not a stay until the disposal of the appeal. Order XXI Rule 29 was inapplicable because the judgment-debtors had not instituted any separate suit. The High Court allowed the writ petition, quashed the Executing Court's order, and directed the Executing Court to proceed with the execution in accordance with law.
Headnote
A) Civil Procedure - Execution of Decree - Stay of Execution - Order XXI Rule 26 and Order XXI Rule 29 CPC - The Executing Court stayed execution of a decree pending second appeal despite the appellate court having specifically declined interim relief. The High Court held that once interim relief is declined by the appellate court, the Executing Court cannot indirectly grant the same relief. Order XXI Rule 26 only allows reasonable time to seek stay from the appellate court, and Order XXI Rule 29 is inapplicable as no separate suit was filed. The impugned order was ex-facie unsustainable. (Paras 3-7)
Issue of Consideration
Whether the Executing Court can stay execution of a decree pending second appeal when the appellate court has already declined interim relief.
Final Decision
The High Court allowed the writ petition, quashed the Executing Court's order dated 06.12.2017, and directed the Executing Court to proceed with the execution in accordance with law.
Law Points
- Executing Court cannot stay execution after appellate court declined interim relief
- Order XXI Rule 26 CPC limited to reasonable time for stay from appellate court
- Order XXI Rule 29 CPC inapplicable without separate suit
